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United States v. Fox

United States District Court, D. Kansas

February 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT WESLEY FOX 01, Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         This matter comes before the court for decision on defendant Robert Wesley Fox's Motion to Dismiss (Doc. 9). On August 23, 2017, a grand jury charged Mr. Fox with one count of failing to register as required under the Sex Offender Registration and Notification Act (“SORNA”). Mr. Fox now challenges this indictment, arguing that SORNA is unconstitutional. The government has filed a response to Mr. Fox's motion (Doc. 12). On January 4, 2018, the court held a hearing and took this motion under advisement. The court is ready to rule. For reasons explained below, the court denies Mr. Fox's Motion to Dismiss.

         I. Facts

         Facts Leading to the Government Charging Mr. Fox

         On April 4, 1997, the El Paso County District Court in Colorado convicted Mr. Fox of Sexual Assault of a Child between the Age of 15 and 18 Years Old. As required by various state sexual offender registration laws, he registered as a sex offender at least three times: on April 5, 2010 in Sedgwick County, Kansas; on May 18, 2010, in Colorado Springs, Colorado; and on October 11, 2010 in Lee County, Mississippi.

         In August 2017, deputies from the United States Marshals Service (USMS) were advised[1]that Lee County, Mississippi had issued a warrant for Mr. Fox for failing to register as a sex offender. According to the deputies' information, Mr. Fox was living in Marysville, Kansas. On August 16, 2017, the deputies contacted Marysville law enforcement officials and showed them Mr. Fox's photograph. The Marysville officials advised that they believed they had spoken with Mr. Fox earlier that summer. And USMS deputies discovered that someone added Mr. Fox's name to a Westar Energy account in Marysville on June 20, 2017.

         That day, USMS deputies arrested Mr. Fox on the Mississippi warrant. On August 23, 2017, the grand jury charged Mr. Fox with failing to register as required under SORNA.

         SORNA

         In response to several high profile and horrific incidents committed by individuals previously convicted of sex crimes, Congress passed SORNA to create a comprehensive national registry for sex offenders. 34 U.S.C. § 20901 (“In order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators against the victims listed below, Congress . . . establishes a comprehensive national system for the registration of [sex] offenders . . . .”).[2] It aims to accomplish this goal by creating “a national baseline for [state] sex offender registration and notification programs.” The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38, 030, 38, 046 (July 2, 2008).

         SORNA requires each sex offender to register in each state where he resides, is an employee, and is a student. 34 U.S.C. § 20913(a). When registering, the offender must provide, among other things, his name, social security number, home address, employer's address, school's address, license plate information, a description of his vehicle, and international travel plans. Id. § 20914(a). Each state, in turn, must ensure that its registry contains, among other things, a physical description of the sex offender, the law under which he was convicted, the offender's current photograph, his DNA, his fingerprints, and a copy of the offender's driver's license. Id. § 20914(b). An offender who moves across state lines and fails to register can be charged with a federal crime. 18 U.S.C. § 2250(a).

         SORNA also mandates that each state's registry is available on the Internet. 34 U.S.C. § 20920(a). And the Attorney General maintains a national database for all sex offenders. The Attorney General must allow social networking sites to access this information. Id. § 20917(a).

         Congress did not decide whether sex offenders who committed offenses before SORNA took effect were required to register. Id. § 20913(d). Instead, it allowed the Attorney General to decide that question. Id.

         II. Discussion

         In his Motion to Dismiss, Mr. Fox argues that SORNA is unconstitutional for four reasons. First, he argues that SORNA violates the First Amendment's compelled speech doctrine. Second, he asserts that SORNA violates the Constitution's Ex Post Facto Clause. Third, he contends that SORNA impermissibly delegates legislative authority to the Attorney General. And last, he argues that Congress exceeded its ...


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